Judges & the Courts

August 10, 2010

While we are still celebrating Elena Kagan's confirmation as an Associate Justice of the Supreme Court, another milestone occurred last week that we are less happy about. Last Friday marked the one-year anniversary of two of President Obama's federal judicial nominations: Jane Stranch, to the Sixth Circuit Court of Appeals, and Ed Chen, to the Northern District of California.

So much has happened over the last year—health care reform was passed, Spain won the World Cup tournament, 4.1 million barrels of oil spilled in the Gulf, the movie Avatar was released after 10 years in development—but after 365 long days, these two nominees are still waiting for a Senate vote. And these two nominees unfortunately have plenty of company. Although four judges were confirmed last night before the Senate went into recess and an agreement was reached to give Jane Stranch a vote when the Senate comes back in September, 20 other nominees are still waiting for a vote. To add insult to injury, Republicans insisted that the White House renominate Ed Chen, along with a number of others (including Professor Goodwin Liu, nominated to the Ninth Circuit). This means that the Judiciary Committee needs to take another vote, and creates the potential for more pointless delays.

Right now there are more than 100 vacancies in the federal judiciary, and more than 40 of these vacancies are considered judicial emergencies. We can't allow this delay to occur anymore. Citizens are being forced to wait for justice while Senators try to score political points. We urge the Senate to take action on the 19 pending nominees in September—so that we do not have to "celebrate" any more one-year anniversaries.

August 09, 2010

It's official! Elena Kagan is now an associate justice of the United States Supreme Court. She was sworn in on Saturday by Chief Justice John Roberts and becomes the fourth woman to have ever served on the Supreme Court. Now that the confirmation process is behind her, she can begin preparing for the next Supreme Court term which will begin in October.

August 06, 2010

Wednesday, in Perry v. Schwarzenegger, a federal district court judge in California struck down Proposition 8, a voter enacted amendment to the California Constitution which declared that marriage could only be between a man and a woman. The decision is the first to find that a provision limiting marriage to opposite-sex couples violates the U.S. Constitution.

In his decision, Judge Vaughn Walker found that Proposition 8 violated both the equal protection clause and the due process clause of the 14th Amendment. In setting out the reasons men and women should be able to marry the person they desire, regardless of that person's sex, the decision drew out important connections between the movement for marriage equality and the movement away from a legally-enforced notion that marriage requires men and women to play particular, distinct gender roles. Judge Walker recognized that views of marriage have changed drastically over time and these earlier, discarded views are not a valid basis for current marriage law.

August 05, 2010

The Senate did the right thing today by confirming Elena Kagan to be an Associate Justice of the United States Supreme Court. I was honored to testify in support at the Judiciary Committee hearings, given her outstanding qualifications, exceptional legal talents, and dedication to the rule of law. It has been a special source of pride and inspiration that our country will see this remarkable trailblazer – the first woman Dean of Harvard Law School and United States Solicitor General – make history once again by becoming only the fourth woman confirmed to the Supreme Court in its 221-year history. When the Court hears arguments the first Monday in October, moreover, three women will be sitting together on the nine-Justice Supreme Court for the first time.

During this time of celebration, we have concrete evidence of how much progress the country has made and can make. But we cannot lose sight of how much more remains to be achieved. Only 220 of the more than 750 active federal appellate and trial court judges are women, and only 54 among them are women of color. There is only one Asian-American judge among the almost 160 active judges on the federal courts of appeal, and there are no Native American judges anywhere on the federal bench. This great imbalance coincides with a large number of vacancies on the federal courts that need to be filled. But a small, but determined, set of Senators are blocking the confirmation of 21 nominees for seats on the lower federal courts. And of the 21 nominees being blocked, two-thirds are women and/or racial or ethnic minorities.

The Supreme Court has the final say on how the Constitution and our laws are interpreted. But the lower courts try the cases and hear the appeals of the thousands upon thousands of people whose claims never make it to the Supreme Court. During her confirmation hearings, Elena Kagan testified that the courts are a unique forum where every party is treated equally – and gave the example of Justice Thurgood Marshall, for whom she clerked, who was able to turn to the courts for justice in challenging racial inequality when other doors were slammed shut. Today, too many Americans are waiting needlessly for their day in court because there are too few judges in place to hear their claims. And the cruelest irony of all is that those who not only could dispense justice, but whose diverse perspectives and life experience would add to the quality of the justice system as a whole, are the very nominees whose confirmation votes are being blocked in the Senate. The courts are our nation's crowning achievement in offering equal justice for all – but that promise is a hollow one if those who have been nominated as judges, especially those who would improve the diversity of those courts, are stuck at the back of a line that the Senate never allows to move.

After months of discussion and debate, we are excited to report that the Senate will be voting today on Elena Kagan's confirmation as an associate justice of the United States Supreme Court. With five Republicans already announcing their support for Solicitor General Kagan's confirmation, we are expecting that she will be confirmed handily. We look forward to Elena Kagan beginning her work on the Supreme Court as soon as she is sworn in (which could be as early as this weekend).

August 03, 2010

Yesterday, a federal district court in Virginia issued a procedural decision that will allow a law suit challenging the constitutionality of the Affordable Care Act (ACA) filed by Virginia's Attorney General Ken Cuccinelli to proceed. This decision was merely procedural and says nothing about the merits of the Virginia Attorney General's claim that the requirement that individuals purchase insurance or pay a fine beginning in 2014 is unconstitutional. Judge Hudson simply found that the court will hear further arguments.

As this lawsuit proceeds, it is important to remember the real lives that will be improved by the ACA. Right now, insurance companies can refuse to sell insurance to adults that have diseases such as breast or ovarian cancer, or who had a disease or medical procedure in the past, such as having had a c-section or even for having been raped. Even when people with pre-existing conditions can find insurance, the rates are often unaffordable. Women in particular will be helped by the ACA's ban on pre-existing condition exclusions and guaranteed issue requirement (e.g. a requirement that insurance companies sell health insurance to anyone who applies), because women are more likely than men to suffer from chronic conditions.

July 28, 2010

Judicial confirmations have been moving at a glacial pace in the Senate, which is a problem that must be rectified. In remarks yesterday, President Obama acknowledged this problem and encouraged the Senate to do better:

"I urged Senator McConnell and others in the Senate to work with us to fill the vacancies that continue to plague our judiciary. Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate.

"If we want our judicial system to work—if we want to deliver justice in our courts—then we need judges on our benches. And I hope that in the coming months, we'll be able to work together to ensure a timelier process in the Senate."

July 20, 2010

Today the Senate Judiciary Committee met to vote on Elena Kagan’s nomination to the Supreme Court. We were particularly happy that, in their statements supporting her nomination, Senators Kohl, Feinstein, Schumer, and Cardin pointed to the fact that Ms. Kagan has been "a first" more than once in her career (as first woman Dean of Harvard Law School and the first female Solicitor General, in particular) and that, when she is confirmed, she will make history by joining two other woman Justices on the same Court. We agree that these are accomplishments that should be celebrated; here and here. And we applaud the Committee for approving Elena Kagan's nomination and setting the stage for her floor vote in early August.

This morning, the Senate Judiciary Committee approved Solicitor General Elena Kagan's nomination to be Associate Justice on the U. S. Supreme Court. The National Women’s LawCenter just released the following statement:

The Senate Judiciary Committee voted today to confirm Solicitor General Elena Kagan’s nomination to the Supreme Court. A statement from Marcia D. Greenberger, Co-President of the National Women’s Law Center (NWLC) follows:

“The strong vote in the Senate Judiciary Committee today reflects Elena Kagan’s exceptional qualifications and remarkable record. We applaud the Committee for bringing such an outstanding nominee one step closer to making history by becoming the fourth woman to ever serve on the Supreme Court.

“Elena Kagan’s sterling credentials and her record inspire great confidence that her approach to legal questions will be open-minded, scrupulously fair, and that she will respect the intent of the law and its contours as her guiding principles. Her testimony before the Committee only reinforced her record of supporting the constitutional and legal rights upon which women rely.

“With Elena Kagan’s confirmation, there will be three women Justices on the court for the first time in history, nearly thirty years after the now-retired Justice Sandra Day O’Connor broke through the glass ceiling to become the first woman Justice. This important first for the Supreme Court is one more step toward the time when women Justices will no longer be viewed as the exception, but rather part of what is normal and routine.

“The National Women’s LawCenter wholeheartedly supports Elena Kagan’s confirmation and urges the Senate to vote on her nomination before the August recess so that she can begin the important work that awaits her.”

July 19, 2010

In a recent pair of rulings that represent a victory for civil rights, Judge Tauro, a federal district judge in Massachusetts who was appointed by Richard Nixon, held that a key provision of the Defense of Marriage Act ("DOMA") defining "marriage" as the union of one man and one woman is unconstitutional. In the first case, Massachusetts v. U.S. Dept. of Health and Human Services, brought by the Commonwealth of Massachusetts, the court held that DOMA encroached upon the state’s authority to define marriage. In the second case, Gill v. Office of Personnel Management, which was brought by several same-sex couples, the court found that DOMA denied them their constitutional right to equal protection of the law. It demolished Congress’ stated rationale for enacting the law, stating that its only real purpose was "to disadvantage a group of which it disapproves."

The court noted that a study conducted by the federal government found that 1,138 federal laws tie benefits, rights, responsibilities or protections to marital status. For example, the plaintiffs in Gill were denied the federal health benefits available to heterosexual spouses, could not receive certain social security benefits, and could not file joint income tax returns.